Monday, April 27, 2015

At Right Wisconsin, I have a post on the indifference of the mainstream liberty to the civil liberties issues raised by the John Doe investigation into conservative advocacy organizations. We can debate the niceties of the prosecutors' legal theories. There are, as I have written in the past, cascading levels of legal difficulty. The prosecutors are, at best, attempting to stretch state law - and both the state and federal constitutions - for all they're worth. But beyond the merits of the investigation, it is profoundly troubling that they have adopted tactics - both in seeking criminal penalties and combining strong-arm searches with John Doe secrecy - that are guaranteed to frighten speakers and deter constitutionally protected expression.

This is why I find the legacy media's relative silence startling. Imagine, for a moment, that this had been done to a newspaper or broadcast operation. Assume an early dawn raid on the Milwaukee Journal Sentinel's offices at Fourth and State in which reporters' files were carried away and editors were told to keep their mouths shut about what had been done to them. (The prosecutors here did contemplate going after broadcast journalists.) Our newspapers and broadcast stations would be apoplectic about the "chilling impact" on freedom of speech that such tactics would have. And rightly so.

Over the weekend, the prosecutors upped the ante. It was reported that Governor Walker questioned the constitutionality and the motivation of the prosecutors. In response, Milwaukee County District Attorney John Chisholm implied that Walker might be criminally prosecuted for criticizing the investigation and questioning the motivation of the prosecutors. “As to defamatory remarks,' Chisholm said, "I strongly suspect the Iowa criminal code, like Wisconsin’s, has provisions for intentionally making false statements intended to harm the reputation of others ....”

I am going to repeat that. The elected District Attorney of Milwaukee County actually suggested that someone who criticized him should be charged with a crime.

Let's start with the easy part. This is the type of statement that will get earn a law student a very bad grade in Constitutional Law. The question is not whether Walker was "right" or "wrong." At minimum, one would have to show that Walker made statements of fact (not opinion). At minimum, one would have to show, beyond a reasonable doubt, that he knew the statements were untrue or acted with reckless disregard of their truth and falsity. Even then, there remain serious constitutional questions regarding the criminalization of political speech.There is no way - not in this country - that such a prosecution could ever succeed.

But the problem here is larger than a single lawyer's understanding of constitutional law or appreciation for the First Amendment. Any lawyer who suggests that political speech should be criminally prosecuted might expect to be laughed at. But when that lawyer has the power to invoke the machinery of the criminal law, it is no longer a laughing matter.

Wednesday, April 22, 2015

A recent Ernie On Wisconsin column by Ernie Franzen quite rightly questions the decision of the Bureau of Commissioners of Public Lands to ban its handful of employees from working on global warming while on the clock. I wonder if there's more to the story, but the ban does seem like overkill.

The column suggests that it is silly for the state to crack down on "time theft" in this way. I agree. these things ought to be handled in less dramatic ways, but let me suggest an even worse example of overreaction to "time theft."

Sending Kelly Rindfleisch to jail for it.

Rindfleisch was charged with felony misconduct in office, i.e., using her public employment in a manner that is inconsistent with her duties to confer a dishonest advantage on another. The theory was, since she wasn't supposed to be doing political work on state time, she had improperly used her position to benefit the candidate she was working for. There is a statute prohibiting fundraising from state office buildings or during set work hours - itself a form of criminalizing "time theft" - but she wasn't charged with violating it. That would only have been a misdemeanor. (In fact, this is what Darlene Wink was ultimately charged with.)

There seems to be a dispute over whether anyone at the Bureau was currently working on climate change during office hours. Perhaps some might even argue that climate change is relevant to the Bureau's mission. But let's assume that someone was working on the issue and that this falls outside his or her job responsibilities -the Bureau itself says so.

Couldn't you shoehorn this climate change advocacy into the felony misconduct in office statute? Wouldn't that person be using her office - its space, perhaps its equipment and the wages she is paid (time theft!) in a way that is inconsistent with his or her duties -she is not supposed to be working on climate change - to confer a dishonest advantage on individuals and organizations engaged in advocacy on global warming.?

One might try to distinguish the Rindfleisch case by arguing that fundraising is specifically prohibited by statute while work on climate change is not, but that may actually weaken the case for using the felony misconduct in office statute in this way. In any event, it would not distinguish the caucus scandal prosecutions. There is simply no express statutory prohibition against public employees doing "political work."

There are still lawyerly distinctions that might be drawn between the caucus and Rindfleisch cases and our climate change hypothetical. But cases seem uncomfortably close.

Don't get me wrong. I don't think that Bureau employees working on climate change should be doing the perp walk. I am using them as a further illustration of why aggressive use of vague statutes to punish political activity is problematic.

I don't know that any of this happened. Even if it did, I would be strongly disposed against using broadly worded statutes to criminalize "time theft."

I think the Bureau's resolution was misguided, but at least it didn't start a John Doe.

Tuesday, April 21, 2015

This is the story: Millennials don't like suburbs. They want to live in the city. Millennials don't like cars. They prefer transit. We should embrace the future and quit spending so much on roads. We should, instead, spend more on urban mass transit including projects such a streetcars that, on their face, seem indefensible.

But the story may be wrong. Over at Right Wisconsin, I write about some recent work that changes the story. Millennials like the suburbs. In fact, more of them are leaving the city than our moving in. While the relatively small cohort that is college educated may be more likely to reside in the city than previous generations, it is unclear whether this is a long term preference or an artifact of delayed marriages and family formation.

I find this completely unsurprising. Whenever someone suggests that human beings are about to radically change their behavior, there is a substantial probability that the claim is wrong. We Baby Boomers were so unique that, with Joni Mitchell, we believed our enthusiasms were not just the "time of the year" but the "time of man."

Monday, April 20, 2015

Writing in the Journal Sentinel, Barbara Miner says that private schools participating in the choice program can "ignore" Wisconsin laws prohibiting discrimination. She then goes on to bemoan the fact that her tax dollars are being used to indoctrinate children in ways that do not meet her approval.

She makes clear that her concern is about Catholic and more traditional religious schools, singling out schools that might teach that " homosexuality is wrong, sex outside of marriage is a sin and artificial birth control is contrary to the law of God." In a jaw dropping statement, she suggests that, in her youth, the Catholic Church was more concerned about social justice than human sexuality. Ms. Miner is older than I am, but I went to Catholic school long enough ago to have attended the Tridentine Mass. I am pretty sure that there was not some "golden era" where the Church was "cool" about premarital sex, sexual orientation and abortion or contraception. In fact, based on my son's experience in Catholic school, I'd guess that sexual matters are less emphasized today that when Sister Maria Immaculata was in charge

In any event, Miner is wrong about the reach of anti-discrimination laws. While there are certainly laws addressing discrimination that do not apply to private schools, there are specific prohibitions of discrimination that apply to the voucher program. Schools cannot discriminate in the selection of students. As to those voucher students attending private religious schools, state law expressly provides that these schools "may not require [a voucher student] to participate in any religious activity" if his or her parent or guardian requests in writing that they be exempt. Sec. 118.60(7)(c); 119.60(7)(c)
To be sure, religious schools may teach willing students things that Ms. Miner thinks are wrong. But, every day, public schools teach children things that religious traditionalists believe to be wrong. Absolute neutrality is simply impossible and "public policy" in a diverse society ought to focus on respecting different points of view rather than enforcing orthodoxy.

Miner is wrong about one more thing. She says that test scores for students participating in the voucher program are "no better" than for children attending public schools. When properly evaluated, this is not true. But even on the flawed measure that Miner is using (comparing an annual snapshot of average WKCE stores among schools), a recent report by the Wisconsin Institute for Law & Liberty found that the test scores for voucher students in Catholic and Lutheran schools (many of which are run by the conservative Wisconsin and Missouri synods) are higher than those for comparable student populations in Milwaukee. In other words, the very religious schools that Miner objects to seem to do a very good job of educating poor children.

Sunday, April 12, 2015

In the Milwaukee Journal Sentinel, Todd Robert Murphy writes that America is divided. He believes that we must act "anew" although he does not explain what that means. In this space, I recently wrote about tolerating speech with which we disagree. I do not suggest that we all need to agree, but it would help if we didn't automatically assume that the other guy is a bastard.

Murphy refers to the reaction to police shootings in which the victim is black and the officer is not. I have been astonished at the extent to which the facts don't matter in the aftermath of these events. Otherwise intelligent people claim that there is some kind of "open season" on black males when the statistics simply don't support that. In fact, they suggest the opposite. People who ought to know better hang on to narratives - "hands up, don't shoot" - long after they have been discredited.

This is an odd thing. There are reasons to be concerned about the police that have nothing to do with race. Giving people guns and exposing them to people at their worst can lead to bad things. (This is why police cameras are probably a good idea.) But it should not be hard for any of us to understand that each of these cases is different and that guilt and innocence depends on the facts and not which narrative - racist cop or young thug - feels right to us. Perhaps this is one way that we might "act anew."

We often hear calls for a dialogue about race - generally from people who want anything but that. A dialogue is not a lecture. It is not limited to confession and the prescription of penance. a conversation about race would certainly be uncomfortable, but that discomfort would be shared all round.

Roger Clegg wanted to have a dialogue about race. Roger is General Counsel of the Center for Equal Opportunity. He is fiercely intelligent but gentle-mannered; one of the nicer people I know. CEO had done a study that demonstrated just how strongly the University of Wisconsin prefers African-American applicants over similarly situated whites, Asians and even Hispanics. (The preference still doesn't result in a large black enrollment at Madison.) When he came to Madison to discuss the report, he was accosted by screaming hordes whose idea of a dialogue is shouting over what you don't want to hear.

Maybe being willing to listen to what we don't want to hear - even when, in the end, we think it is wrong - is another way that we might "act anew."

A large part of our intelligentsia has come to believe that traditional Christian, Jewish and Islamic views on human sexuality are not only wrong, but manifestations of hate. Those who hold them are bigots or psychologically maladjusted ("phobic") and must not be permitted to act on - or even to express - their views without legal sanction (for the former) and social ostracism (for the latter). They believe, like the Medieval Church, that error has no rights.

On the merits, I am closer to the new received wisdom than I am to the religious traditionalists. But it strikes me as arrogant to dismiss the latter as bigots and inconsistent with the very idea of a free society to deny them a space to live in accordance with their consciences. (Analogies to race are, I think, inappropriate but that's a subject for another day.)

Perhaps finding more room to tolerate not what only those people we believe have been historically ostracized, but those we believe to be wrong is another way to "act anew."

Friday, April 10, 2015

At Right Wisconsin, I have a preliminary analysis of Chief Justice Shirley Abrahamson's attempt to block the change to the manner in which the Chief Justice of our Supreme Court is selected. There are multiple claims but I think it helps to see them as falling into two categories.

First, she argues about what the amendment means. She claims that it does not apply until her current term expires. To make it apply now, she says, would be a "retroactive" application. There is a presumption against retroactive application of new laws (that's true) and the amendment, she argues, does not clearly say that it applies immediately. She even goes so far to suggest that voters "were not told" and "did not understand" that it might displace her as Chief Justice before the expiration of her current term.

This argument is beset with problems. First, the amendment does not operate "retroactively." It goes into effect on the day that the election results are certified and changes designation of the Chief Justice from that day forward, i.e., it operates prospectively. Normally, we thing of a retroactive law as one that imposes new consequences for past behavior or that disturbs vested rights or relationships. (More on that later.) It does not mean that one has the right to believe that the law will not change for some given period of time.
In fact, if application of the amendment to the incumbent Chief Justice is "retroactive," it is unclear why it would no longer be so once the incumbent's current term expires. If a prospective application requires the existence of a vacancy in the office of the Chief Justice, there will be none until the incumbent either relinquishes the office or leaves the Court. In other words, the argument proves too much.

Second, while there is a presumption against retroactive laws, there is no per se prohibition of retroactivity. (Retroactive application can cause other problems but we'll get to that.) It seems clear that the law was intended to change selection of the Chief Justice immediately. There is no "grandparent" provision. The legislature declined to insert one. The selection method is not conditioned upon a vacancy or the completion of a term; it requires a new selection every two years.

It is simply not true that "no one thought" that the amendment could displace the current Chief Justice. In fact, voters were repeatedly told not only that it would do so, but that this was its sole purpose. Proponents of the amendment denied the latter, but not the former.

In any event, I wonder if the federal court will want to reach this question. The ultimate authority on the meaning of the amendment resides with state courts. While federal courts can address state law questions when that is necessary to resolve federal claims, they often, under certain circumstances, defer to state courts to first construe the state law in question. That could happen here in two difference ways. If someone were to file a state court action raising the issue, the federal court might choose to abstain. Alternatively, the federal court might request the Wisconsin Supreme Court to construe the amendment. While this might be awkward for the Supreme Court, it is not impermissible.

There is a third possibility. The federal court might find the federal claim - a constitutional challenge that we have not yet discussed - to be wholly without merit. In fact, it should do so - the claim is close to frivolous. If it dismisses that claim, it should probably dismiss the request to decide whether the law applies during Chief Justice Abrahamson's current term. That is a state law question over which federal courts have no jurisdiction. While there is a concept called supplementary jurisdiction that sometimes permits such claims to be heard, this does not seem like a good case for its application.

So what about that constitutional challenge? The complaint alleges that, if the amendment applies during Chief Justice Abrahamson's current term, it violates the federal constitution. The principal argument is that the Chief Justice has a property interest in being the Chief Justice which is being deprived without due process. But there are some old U.S. Supreme Court cases that say that an elected official, unlike other public employees, has no property interest in his or her office.

If you argue that these cases are outdated or establish only a "default" rule, controlling doctrine makes clear that you must identify a state law source for the claim that the Chief Justice has an entitlement to her position. She can't do that. Nothing in Wisconsin law ever created such an entitlement (a fixed term of office does not do that). Moreover, state law - indeed the state Constitution - was just amended to make clear that there is no such entitlement. A duly enacted constitutional amendment is not a due process violation.

The complaint goes on to argue that the voters who elected her in 2009 were denied due process and equal protection of the law because their election of her "as Chief Justice" has been frustrated. It is, of course, a complete fiction that she was elected "as" Chief Justice. She simply stood for election to the Court. We don't elect the Chief Justice in Wisconsin. That voters knew she was Chief Justice and would remain so unless the law changed is not the same as electing her to that position. It is true that she ran aggrandizing ads referring to herself as "Wisconsin' Chief," but the purpose of those was to elevate her over her opponent, not to ask voters whether she should continue in that role as well as remain on the Court. No voter has ever elected her - as opposed to her colleagues - to be Chief Justice. No voter in 2009 had the option to retain her on the Court but displace her as the Chief.

But even were that not so, the "frustration" of the voters decision in 2009 is a product of a decision in 2015 by … the voters. We would not have thought that the folks who voted for Scott Walker in 2010 would have been denied due process and equal protection if he was recalled in 2012. While recall statutes existed in 2010, so did the process for amending the Constitution.

It is simply not the case that, once voters elect someone, the accoutrements and responsibilities of that office - or even the term of office - cannot be changed until completion of the term. This is particularly true when the change is accomplished by the voters themselves by amending the state's highest law, its Constitution.

Thursday, April 09, 2015

Emily Mills writes about one response to Purple Wisconsin blogger Claire Van Fossen's call for an end to the police and her "resolution" not to call the police when she is "in a jam." It should surprise no one that the post was met with strong and widespread criticism and even derision.

Those responses should have been directed at what she wrote and not at her. But the comment sections on blogs are cesspools. Someone apparently thought it clever to suggest that Van Fossen might safely be sexually assaulted since she wouldn't call the cops. While it probably wasn't intended as a threat, that type of personal attack is disgusting. Ms. Mills' point is that women are often met with misogynistic responses to their arguments.

I want to get beyond that, but it would be wrong not to acknowledge that she has a point. While I wouldn't say its common, I've heard men express anger at or disagreement with a woman in misogynistic ways before and it has always struck me as creepy. Putting aside considerations of gender fairness (which I do not discount), I am old enough to remember when young men were taught that a gentleman did not do things like that. More fundamentally, there is something dehumanizing about it. As Mills points out, it's quite OK to disagree sharply with a woman but there is no need to treat her like some lesser form of being.

I wish it were a more isolated phenomenon. But Judge Rebecca Bradley was subjected to crude and dismissive innuendo when she had the gall to stand for election as Governor Scott Walker's appointee to the Circuit Court. There were misogynistic attacks on Lt. Gov. Rebecca Kleefisch and Vice Presidential candidate Sarah Palin. Outspoken conservative women are regularly accosted with the "c" word. It is quite OK to disagree sharply with conservative women, but there is no need to treat them like some lesser form of being.

I don't mention this to claim equal time for my side in the victim sweepstakes but to pose a question. My guess is that the people who attack conservative women in this way would otherwise regard themselves as "feminists" or "pro-women." I suspect that in some ways they are. So what moves them to turn into Tucker Max whenever a woman doesn't think like she's supposed to?

The answer may be that their animus is not based on gender. Gender is simply the way in which it is expressed. Attackers try to find the most hurtful thing they can say. That can take the form of racial or gender based insults, but it can also take other forms. The problem of civility in public discourse involves a lot more than hatred calibrated in the categories recognized by the political left.

For example, during the last Presidential cycle, the Vice President of the United States likened Republicans to slaveholders. Another Vice President, Al Gore, not too subtly hinted that opponents of affirmative action intend for blacks what hunters wish for ducks. Last week, a pizza parlor in Indiana was subjected to vile threats for holding retrograde views on same sex marriage. What's going on?

Jonah Goldberg recently wrote about Francis Fukuyama's coining of the term "megalothymia"- the compulsive need to feel superior to others:

And boy howdy, do we have a problem with megalothymia in America today. Everywhere you look there are moral bullies utterly uninterested in conversation, introspection, or persuasion who are instead hell-bent on grinding down people they don’t like to make themselves feel good. If you took the megalothymia out of Twitter, millions of trolls would throw their smartphones into the ocean.

We see cheap traffic in terms like "bigot" and "hate" to describe those we disagree with. It is easier to attack the motives and "intent" of the other side rather than engage its arguments. We are all too sure that we're right and that being right clothes us in a type of moral authority that excuses what we'd otherwise recognize as atrocious behavior. If the other side is evil or psychotic or corrupt, then we can't fiddle with civility while flames are lapping at the city gates.

What can be done about this? Nothing. Even the suggestion that the government police discourse ought to be off the table. But if much of what we see as hatred is motivated by megalothymia - by the rapture of holding oneself righteous - then it may be susceptible to self correction.

I find that in most cases - and this includes the Van Fossen post - the position taken by people I disagree with are based on explicable premises (even if I think they are wrong) and an articulable logic (even if I believe it doesn't bear scrutiny). In other words, they are sincere and there is a reason they say what they do. That reason can rarely be reduced to corruption, hatred, bigotry, insanity, etc.

I don't claim that I always succeed in this, but you ought to try to understand the other side as they understand themselves. You'll probably still disagree with them. You may even disagree sharply. You might still respond with sarcasm and strong language. But you will be far less likely to make that disagreement personal and far less likely to regard your interlocutor as an awful human being. You might pause before you liken them to slaveowners, Nazis, traitors or terrorists. It will be less likely that your argument includes references to rape or suggestions that someone be killed and the fruits of their ill-gotten white privilege liberated.

I am not suggesting that we can all just get along. Political differences are important and I don't think they can be minimized through some magical "third way" or "evidence-based" approaches. What I am saying is that we live in America in 2015 and not in Germany in 1933. Our political differences, thank God, generally do not involve or require hatred.

Wednesday, April 01, 2015

In yesterday's Milwaukee Journal Sentinel, Mayor Tom Barrett criticized Indiana's new religious freedom law, claiming that it sides with religious extremists and imposes a particular religion on the rest of us. He says that Indiana's law is a bad example and Wisconsin should not follow it.

Too late, Mr. Mayor. As I wrote on Right Wisconsin yesterday, Wisconsin's constitution has been interpreted to provide the same protection to religious freedom as the law just passed by Indiana. In Wisconsin, just as in Indiana, the state may not enact laws which substantially burden a person's religious freedom unless it can show that imposing this burden is necessary to achieve a compelling state interest. (A map showing which states provide this protection can be found here. It looks like 27 states provide this form of "extremist" and "inhospitable" protection for religious dissenters. Only five clearly do not.)

It turns out that the Mayor needn't worry about Wisconsin following Indiana's example. It was Indiana that followed ours.

There are a few other things that might surprise the Mayor. First, the 1996 state supreme court decision that adopted this "extreme" protection for religious freedom was unanimous. It was written by former Justice Janine Geske and joined by Chief Justice Shirley Abrahamson and Ann Walsh Bradley. You can't blame "the conservatives" for this one.

Second, it jumps the gun to say, as the Mayor does, that Indiana's law (or Wisconsin's constitution) means that a baker or florist can refuse to provide goods or service to a same-sex wedding. A court would have to decide whether, in the particular circumstances, the state has a compelling interest in applying its anti-discrimination law to a religious objector. The answer to that question may vary from business to business. For example, the claim of a large business providing goods or services unrelated to marriage or sexuality (think Chik-fil-a or WalMart) may be outweighed by the state's interest in making certain public accommodations available to all. The claim of a wedding photographer who does not wish to involve herself in a ceremony that she feels endangers the immortal souls of all involved may not be.

The one thing that we can say based on experience with states who provide heightened protection for religious freedom is that such claims are rarely made.

I am aware that some people have tried to argue that Indiana's law is somehow different from the similar protection provided to religious freedom by the federal government and twenty-x states. The arguments fail. As the Supreme Court recognized with respect to federal law in last term's Hobby Lobby decision, a religious objector - or group of objectors - engaged in a for profit or business or operating in the corporate form do not forfeit their religious liberty.

Nor is it surprising that the protection of religious liberty might apply to private parties seeking to enforce a government law. Indeed, that's precisely how protections of constitutional or statutory liberty normally work. Imagine, for example, that Wisconsin passed a law permitting "wrongful death" actions by private parties (say the father of the aborted child) against women who exercise their constitutional freedom to choose an abortion. Under commonly accepted doctrine, a woman facing such a suit would be able to present a constitutional defense,

Of course, even though he did not do his homework, it is open to Mayor Barrett or anyone else to argue that Wisconsin, as well as Indiana, has got it wrong - that religious dissenters - even Mom and Pop bakers and florists - should be forced to act contrary to their religious conscience and that no special regard for their religious liberty claim ought to be part of the law.

But before you conclude this is so, read this column by New York Times columnist Ross Douthat. The answer is not a simple matter of respecting "rights" or prohibiting discrimination. (There are rights and discrimination claims on both sides of the question.) The question is not answered by whether or not you agree with religious objections to homosexuality or same-sex marriage. (While I have opposed legal recognition of same-sex marriage on secular grounds, I do not have religious or moral objections to either.) Majority religious beliefs are unlikely to be subject to legal burden, so protections of religious liberty are always going to apply to beliefs that the majority does not share. It can't be resolved by facile comparisons to race. Race is unique in American history.

You have to ask yourself whether the idea of freedom in our country is large enough to permit dissent on the question of human sexuality. Is it really necessary to extirpate all remnants of traditional religious viewpoints? Slogans and catch phrases won't accomplish the heavy lifting required to answer those questions.

About Me

I am President and General Counsel of the Wisconsin Institute for Law & Liberty and an adjunct professor of law at Marquette University Law School. The views expressed here are my own and not those of WILL or Marquette. They are offered in my personal capacity.